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The Snowden Prize

Before the report of President Obama’s independent task force to review the National Security Agency’s aggregation of every bit of metadata generated, there were two working assumptions. First, given that Obama hand-picked his task force, it would return a report that mirrored his proposals for reform, which largely had to do with the color of the wallpaper at the NSA and more infomercials like the 60 Minutes exposé by masterful shill John Miller.

Sure, Mr. Obama thanked his panel for making 46 recommendations to restore the rule of law and constitutional principles to government surveillance activities. (The number alone casts a bad light on the president’s repeated claims that there really was nothing wrong with surveillance policy.) And he promised to review those ideas and let us know next month which, if any, he intends to follow.

But Mr. Obama has had plenty of time to consider this issue, and the only specific thing he said on the panel’s proposals was that it might be a good idea to let communications companies keep the data on phone calls and emails rather than store them in the vast government databases that could be easily abused. But he raised doubts about such a plan, and he left the impression that he sees this issue as basically a question of public relations and public perception.

Even those who were damn near certain the report would turn out to be a sham were impressed. This comes on the heels of a decision by Judge Richard Leon that the NSA’s conduct is almost certainly unconstitutional, and as revealed yesterday, the Justice Department’s concession to release the secret FISC opinion authorizing the seizures under Section 215 of the USA PATRIOT Act.

In its latest filing, the Justice Department explained the reason for its initial reluctance to have the opinion published: It relates to the subject of an FBI counterterrorism investigation. Some information in the opinion could tip off the subject or his associates, the Justice Department said.

“However, upon review and as a discretionary matter,” the government said, it decided to drop its objection to the court publishing parts of the opinion, as long as they’re not classified and don’t jeopardize the investigation.

This has been a long fight by the ACLU, and coincidentally (as EFF’s Jim Tyre pointed out) comes right after Judge Leon’s scathing opinion. Things are happening. Not without resistance, particularly from our audacious and hopeful President, but they are happening nonetheless.

That the NSA’s program overreached to an extent unimaginable is part of the problem. That the program was performed under a cloak of secrecy which precluded any meaningful challenge was another part of the problem. That our government, spanning both parties and with the most sincere embrace of officials who are certain they are doing what they must to protect us, because the American people are too foolish and infantile to decide where along the spectrum of security and freedom they want their government to be, has decided to forsake the Constitution for our own good, is very much a part of the problem.

And then there is Edward Snowden. Traitor? Sure. Hero? Maybe. A guy with problems? Definitely. But without Edward Snowden’s revelations, there would be no discussion, no challenge, no vast public reaction to learning that the metadata from grandma’s phone calls are right there with the terrorists. If there are terrorists.

Without Edward Snowden, we wouldn’t know to be outraged. We wouldn’t even know to be slightly miffed. We wouldn’t be in a position to raise questions. And while it’s unclear that the American public has been sufficiently moved to take the position that they will not tolerate the NSA’s spying on our own, a concept that has always been anathema to Americans, there is no longer any question that Americans now question whether our government is engaged in a terrible affront to the Constitution.

This is huge. This doesn’t happen easily or often, and it’s happening. Like it or not, it’s happening because of Edward Snowden.

Whether there will be statues built of him, or elementary schools named after him, remains to be seen. It’s not likely. But in this age of faux disruptors, there stands a real one who has moved a government, if not all governments, and the public they theoretically exist to serve, to face the fact that the lies, the duplicity, the evisceration of privacy, all done with putative good intent for our own safety, to face its conduct.

For those who believe that the need for security is so dire that it trumps constitutional rights, Snowden will forever be a traitor, and should hang from a rope. For those who believe no government has the authority to secretly undermine constitutional rights because it believes it knows what’s best (or, if you’re particularly cynical, to extend its power and control), then Snowden, for better or worse, did what had to be done.

He may be no hero, but what Edward Snowden has put in motion may be the most significant disruption in the government’s abuse of constitutional freedoms since the World War II internment of Japanese. And at least we knew about that. For that, Snowden gets the deep appreciation of a freedom-loving people, even if he never gets a prize.

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19 comments on “The Snowden Prize”

Snowden stands on the shoulders of, in the most proximate sense, several decades’ worth of crypto-geek theory & praxis. By his own words, he’s been bathed in those waters throughout his adult life – without that substrate, there’s no Snowden. Again, by his own words.

No Wikileaks, no Snowden. No Applebaum, no Snowden. Hell, might as well: no Stallman, no Snowden. We all learn from each other… and a very small percent have the courage and integrity to act when action is what’s required.

Snowden did that – how many others had exactly the same opportunities as he did, but convinced themselves they should wait for “someone else” (the courts?) to fix the problem? Hundreds, surely. More likely many thousands. But only one stepped forward. Because he didn’t accept that someone told him things just had to be that way. He used the tools and tactics of the most tinfoil-hatted of the crypto geeks, and he did the deed.

The propaganda of the deed. Sometimes, it’s what’s needed – not a bunch more words.

You’re right (though not all of your techno-brethren are as fond of Assange as you are). The dilemma is always the same, though. There are no shortage of tinfoil-hatted saviors (think sovereign citizens, for example) who are certain that now is the time to act, now it the time for revolution. Most end up being wrong. Most are delusional nuts.

Was Snowden another delusional nut? I have no idea, but he turned out to be right. So does this prove the blind squirrel theory or that every delusional nutjob is right, and therefore isn’t a delusional nutjob? Is there a way to distinguish the nutjobs from the heroes? If so, I have no clue what it that way might be. It seems we can only figure it out after the fact.

By definition, he’s probably a traitor to the State, having broken his oaths and all.

But I can’t see how he’s a traitor to the Constitution, or to the People.

As an “American Patriot”, I really don’t care about America as such. What I’m patriotic about is the Constitution. So for me, Snowden is a hero. Obviously, others can be patriotic about other things, and will focus more on those traitorous bits.

I still agree Snowden belongs in jail. He broke his oath, and no government can properly serve its functions if people go around revealing its secrets without consequences. That he broke his oaths, no matter how justified, bothers me a lot. I despise those that claim that since his cause was just that he deserve to break the law/oaths — because that’s what most bad people think.

This is what makes Snowden such a curious figure. He’s both hero to the People and traitor to the government. I would think, though, that your view as an “American Patriot” would put you in the camp that our loyalty should be to the Constitution rather than the regime, and therefore Snowden’s breaking of his oath was justified by devotion to a greater purpose. No?

The problem with that position is that oaths are taken up front, before we come to understand and recognize what we’re really dealing with. Oaths tend to be broad and amorphous, all nice sounding words without much substance. And Oaths often conflict: We take an oath to honorably fulfill a governmental function, but also to protect and defend the Constitution. The two are not necessarily aligned. Which prevails? Not so simple, eh?

I agree that the “higher purpose” rationale essentially justifies anything and everything you feel like doing, and is therefore meaningless, but I wouldn’t go so far as to say that taking a blind oath and later realizing that it meant being complicit in unprincipled conduct is the same as having no principles. It’s a very circular dilemma.

I can’t buy the idea that breaking an oath is de facto reason to punish someone. The oath isn’t to the government, per se, it’s an oath to protect the Constitution, and our constitutionally-formed Republic. In that sense, I’d say Snowden kept his oath, and did what he promised to do.

If taking an oath required the oath-taker to keep quiet about government malfeasance — to the point of keeping quiet when the government abrogates its own constitutional principles — then the simple path to dictatorship and fascism is clear: make everyone take an oath to keep quiet about government malfeasance.

Frankly, I think Snowden hasn’t yet done enough to get people to understand why they should care about this. From where I sit, a few people are upset, and maybe there is a bunch of saber-rattling, talk of reigning in the government, and other blathering.

But so far, it appears to be just that: blathering.

When the government stops doing what its doing, then I’ll be impressed.

My point was that the oath, if any, wasn’t to protect a law-breaking government; it was to protect a constitutional one. If the government isn’t going to follow the Constitution, the government has no legal basis to exist. (No, this isn’t a call for revolution. I mean “in its non-constitutional form.” Outing a non-constitutional government seems to me to be honoring any oath to protect the constitutionally-grounded government.)

Fantastic expression of the situation, Scott. I plan to send a link for this to my publishers’ group.

If an American fights to uphold the principles of the Constitution, he is not a traitor. If he risks his life, his freedom, everything else that he holds dear to protect our nation and the ideals of our Constitution, he is not a traitor.

“I wouldn’t go so far as to say that taking a blind oath and later realizing that it meant being complicit in unprincipled conduct is the same as having no principles.”

Scott,

This point is one that I rarely see being made. Was this also not the rationale for Nuremberg convictions, that “following orders” was not justified if the orders were illegal? Also, exactly what “oath” does a Booz Allen (or any other contractor for NSA) take? Is it the same or different from what NSA employees are required to do?

I’m not Scott, but I don’t think he meant “oath” literally. Everyone with a security clearance, regardless of the specific clearance level, and regardless of whether employed by the government or a private contractor, must sign a non-disclosure agreement as a condition of being granted the clearance. That agreement binds the person to keep the classified information secret for as long as it is classified, even after the person no longer has a clearance or a relevant job. And that agreement makes clear that there are criminal penalties available if the agreement is breached. So, regardless of whether that’s considered an oath, there are consequences to disclosing classified information.

Appreciate that clarification. Wonder why all the “oath-takers,” like DiFi and Clapper and Alexander, still keep saying he violated an oath, rather than a NDA. I am assuming it’s because it sounds worse, or more sinister. Not a lawyer, but I am sure there are legal/criminal penalties in both cases. Again, thanks for the clarification. Never had a security clearance, and don’t think I want one 😉

New interview with Snowden in tonight’s (Monday) Washington Post. Yes, he still has one of our (EFF’s) stickers on his laptop. On the specific subject of these comments:

“It is commonly said of Snowden that he broke an oath of secrecy, a turn of phrase that captures a sense of betrayal. NSA Director Keith B. Alexander and Director of National Intelligence James R. Clapper Jr., among many others, have used that formula.

“In his interview with The Post, Snowden noted matter-of-factly that Standard Form 312, the ­classified-information nondisclosure agreement, is a civil contract. He signed it, but he pledged his fealty elsewhere.

“’The oath of allegiance is not an oath of secrecy,’ he said. ‘That is an oath to the Constitution. That is the oath that I kept that Keith Alexander and James Clapper did not.’”

Regardless of the content of Standard Form 312, Snowden’s response hits the nail on the head. Where the oath (or whatever word you prefer) to uphold the Constitution conflicts with all other duties, you can’t honor them all and must make a choice. And live with the consequences of the choice.

I don’t know specifically the language of the obligations that the NSA requires of its contractors, but it is probably close to the forms you sign when accessing DoD special access programs. That form is called DD 2836 and is easily enough googled.

The form presumes that the classified activities are legal, but does offer this: “This Agreement shall be interpreted under and in conformance with the law of the United States.” Snowden may have believed that he knew about things that were unconstitutional (as has been confirmed by Judge Leon), and thus it was not a violation of his oath to disclose them.

It’s not a situation that comes up often.

(And even though you can make an argument that some of what he disclosed was illegal, and therefore disclosing it wasn’t a violation of the oath, I think he disclosed a great deal of material that wasn’t illegal, and that doing so was wrong. If I had been in his shoes, I don’t know what I would have done. And if I had pardon power to resolve his problems, again I don’t know what I’d do. )

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Scott H. Greenfield

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